Cases and authorities

CIVIL PROCEDURE — Application for stay of decisions of The Council of the Law Society of New South Wales to suspend the plaintiff’s practising certificate and appoint a manager to her legal practice until determination of the summons — Allegations of alterations to documents associated with personal injury actions which potentially, or in fact, led to money being transferred to the plaintiff — Concurrent civil and criminal proceedings — Plaintiff charged with making and using false claims assessment certificates to obtain advantage or cause disadvantage — Plaintiff not charged in relation to alleged alterations of invoices provided to litigation funder — Consideration of the “public interest” as encompassing interrelated interests and not being limited to a practitioner’s clients — Presumption of innocence applies only in criminal proceedings — Discussion of the effect of admitting and denying guilt of criminal charges on disciplinary proceedings — Plaintiff’s continued practice, even on conditions, would pose a risk to public and reputation of legal profession - Stay of suspension refused

PRACTICE AND PROCEDURE – Proceedings brought by plaintiff seeking judicial review of discretionary determinations made by the NSW Legal Services Commissioner following complaints made about legal practitioners – Assertion made by the plaintiff that the decisions were “perverse” – Whether proceedings should be dismissed on the basis that they disclosed no reasonable cause of action – Whether relief available in any event – Proceedings dismissed

CRIME – appeals – application for leave to appeal against convictions – unreasonable verdict ground – offences of participate as client in act of child prostitution – whether Crown proved that applicant knew complainants were under 18 years at time of alleged offences – whether one complainant retracted evidence in cross-examination – whether other complainant’s evidence of post-offence conversation capable of proving applicant’s knowledge at time of offence – relevance of retrospectant evidence considered

CRIME – Appeals – Appeal against sentence – Manifest excess – Drug offences – Supply prohibited drug – One count of large commercial quantity of methylamphetamine and two counts of commercial quantities of heroin and methylamphetamine – Firearms offences – Two counts of possess shortened firearm – Aggregate sentence of fourteen years, eight years six months non-parole – Use of discounts to indicative sentences to determine aggregate sentence but for discounts – Use of comparable cases indicating substantially shorter sentences in like cases and in cases involving considerably greater quantities of methylamphetamine – Manifest excess established CRIME – Appeals – Appeal against sentence – Re-sentence – Special circumstances and reduced moral culpability – More substantial degree of concurrency – Aggregate sentence of ten years, six years non-parole, imposed

CRIME – Appeals – appeal against sentence – manifest excess – general and specific deterrence – sentence imposed was available to sentencing Judge – appeal dismissed

CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Application to amend statement of claim — Proceedings commenced in 2017 and application foreshadowed the week before commencement of hearing in 2021 — Potential prejudice to defendant if amendment allowed — Consideration of the just, quick and cheap resolution of proceedings and matters in Part 6 of the Civil Procedure Act 2005 (NSW) — The amendment would be a substantial amendment and put the defendant in a position where it is deprived of adequate time to consider the forensic consequences of the amendment — Amendment refused

COSTS – No point of principle

PRACTICE AND PROCEDURE – discontinuance – leave to discontinue – costs on discontinuance - application for orders disposing of proceedings – opposing costs orders arising from discontinuance of proceedings by plaintiff -

JUDGMENTS AND ORDERS – dispute concerning the form of final orders following a contested hearing – in the principal hearing the plaintiffs sought relief restraining the defendants from misusing the plaintiffs’ confidential information – defendants cross-claim for damages for breach of contract – plaintiffs successful in their principal claim – defendants/cross-claimants also successful on their cross-claim – what is the proper form of final orders – whether the principal claim and cross-claim be set off under Civil Procedure Act 2005, s 90 – whether the defendants should be ordered to put on affidavits confirming the destruction of the plaintiffs’ confidential information – what is the correct calculation of the principal sum owed on the cross-claim including the conversion of unpaid amounts from SGD to AUD – whether an order for indemnity costs should be made – whether a specified gross sum should be awarded instead of assessed under costs under Civil Procedure Act, s 98(4)(c) – what should be the quantum of any specified gross sum instead of assessed costs.

JUDGMENTS AND ORDERS – Enforcement – Appeal from setting aside of examination orders – Where District Court had given two inconsistent judgments – Where Court of Appeal previously prohibited District Court from taking any further steps in proceedings on basis that second judgment was valid – Where District Court on remittal considered itself to be functus officio – Whether District Court entirely prohibited from taking any further steps in the proceedings – Court of Appeal only quashed second judgment – Court of Appeal only prohibited steps on basis of validity of second judgment – Distinction between adjudication and enforcement – Appeal allowed APPEALS – Right of appeal – Who may exercise – Felons – Application of Felons (Civil Proceedings) Act 1981 (NSW), s 4, in Court of Appeal APPEALS – Leave to appeal – Whether leave required – Interlocutory decisions – Setting aside of examination orders – Decision had effect of finally disposing of proceedings – Evident merit to appeal – Leave granted APPEALS – Procedure – Time limits – Extension of time – Where respondents on notice of intention to appeal prior to time elapsing – No prejudice identified – Extension granted

Injunctions – mandatory interlocutory injunction – patient’s family seeks administering of medical regime for hospital in treatment of sepsis – some doubt as to duty of hospital to administer family-required treatment – orders as sought denied – possibility of orders removing patient to another facility if sought

LOAN RECOVERY – whether defendant borrowed money from his late Aunty in 2010 – inferences drawn from finding of completion of cheque butt – loan established – whether limitation period suspended because of relevant disability affecting lender – disability must be in the management of her affairs in relation to the cause of action the subject of the proceedings – only evidence adduced specific to the loan suggested lender not substantially impaired in relation to cause of action – limitations on evidence from expert who did not examine lender – onus of proof not discharged – proceedings dismissed.

EMPLOYMENT AND INDUSTRIAL LAW – Termination of employment – Public sector employee summarily dismissed for serious and wilful misconduct – Disclosure of information relevant to murder prosecution to police – Whether contractual right to dismiss for serious and wilful misconduct exercised – Whether disciplinary proceedings pursued under Transport Administration (Staff) Regulation – Whether employee denied procedural fairness – Whether employee engaged in serious and wilful misconduct – Relevance of ss 315, 315A and 316 Crimes Act – Whether contract repudiated CONTRACT – Contract of employment – Whether employee employed as a senior manager under Transport Administration Act – Whether provision of contract of employment ineffective CONTRACT – Breach of contract – Construction of contractual confidentiality provision – Whether employee contractually precluded from making disclosure to police – Whether employee had legal duty to make disclosure – Inconsistency between confidentiality provision and s 316 Crimes Act – Whether disclosure precluded by Privacy and Personal Information Protection Act CONTRACTS – Remedies – Damages ADMINISTRATIVE LAW – Judicial review – Whether to extend time to commence proceedings – Application brought 79 days out of time – Rule 59.10 of the Uniform Civil Procedure Rules – Public Interest – Extension of time granted ADMINISTRATIVE LAW – Jurisdiction – s 68O Transport Administration Act STATUTORY CONSTRUCTION – ss 68N and 68O Transport Administration Act – Whether s 68O operates to preclude judicial review or remedies for breach of contract – reg 30 Transport Administration (Staff) Regulation – What procedural fairness requirements regulation imposes – Privacy and Personal Information Protection Act – s 4 – Whether definition of personal information extends to information about an individual’s criminal activities – s 62 – Whether offence confined to corrupt disclosure or use of personal information – Crimes Act – s 316 – Whether s 62 Privacy and Personal Information Protection Act provides basis for a reasonable excuse under s 316(1)(c) of the Crimes Act

COSTS — Party/Party — Where no determination on the merits — Whether effective surrender by the Defendant.

HIGH RISK OFFENDER – serious sex offences – preliminary hearing – application for variation of existing ESO under s 13 of the Crimes (High Risk Offenders) Act 2006 to extend the order by 2 years and add and modify conditions – alternatively orders sought for an ISO and psychologist and psychiatrist examination and fresh 2 year ESO – Court not satisfied to a high degree of probability that defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – application dismissed

APPEALS – procedure – application for stay of judgment pending appeal – stay refused on the condition that the first and second respondents give certain undertakings

OCCUPATIONS – Legal practitioners – Solicitors – Professional negligence – Advising client – Whether solicitor settled motor accident insurance claim prematurely and at an undervalue – Whether solicitor entitled to rely on Civil Liability Act 2002 (NSW), s 5O – Whether causation of loss established – Appeal dismissed NEGLIGENCE – Breach – Standard of care – Professional negligence – Whether solicitor acted in a manner widely accepted in Australia by peer professional opinion as competent professional practice – Expert opinion adduced not determinative merely because not challenged on ground of irrationality – Where solicitor gave clear and repeated advice discouraging premature settlement at undervalue despite client’s perilous financial position and desire for quick settlement – Where early settlement prudent given risk of future disclosure of information adverse to claim – Where accepted offer far from so unreasonable as to warrant warning against acceptance – No breach of duty of care NEGLIGENCE – Causation – Factual causation – Whether client would have accepted offer even if given proper advice – Competing expert opinions – Where accepted offer was slightly above mid-range of potential outcomes – Where client in precarious financial position – Where clear willingness to settle – Where risk of future disclosure of information adverse to claim – Causation not established

CRIME – Appeals – Appeal against sentence – Firearms offences – Unlawfully sell firearms three or more times – Drug offences – Supply large commercial quantity of prohibited drug – Discounts – Guilty plea and assistance to authorities – Whether error in respect of discount – Discount at the low end of available range but no error established APPEALS – Further evidence – Evidence not adduced at sentencing – Firearms test report – Whether relevance and significance not appreciated below – Where sentencing judge’s assessment of objective seriousness of firearms offence proceeded on misapprehension due to absence of regard to mitigating effect of report – Evidence admitted CRIME – Appeals – Appeal against sentence – Manifest excess – Resentencing – Where sentencing judge’s assessment of objective seriousness of firearms offence erroneous in light of further evidence – Where relatively low discount applied by sentencing judge – Use of comparative cases and statistics – Accumulation – Appeal allowed

CRIME – appeals – appeal against sentence – singular ground of manifest excess – multiple offences – structure of the sentencing – aggregate sentence – accumulation of sentence – principles re manifest excess ground – whether sentences produced a non-parole period which was manifestly excessive – sufficiency of adjustment to statutory ratio or special circumstances – whether the Court had removed the effect of a finding of special circumstances as a result of accumulation – leave to appeal granted – appeal dismissed

CRIME – appeal against sentence – taking further offences into account – Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 – error in Form 1 procedure – failure to ask offender personally about Form 1 offences – incorrect offence listed on Form 1 – English not offender’s first language – ground upheld – remitted to District Court for resentencing CRIME – appeal against sentence – aggregate sentence – supplying a prohibited drug – possess a prohibited weapon – guilty plea – manifest excess – indicative sentence – sentencing statistics – quantity of drugs at lower end of indictable range – ground upheld

CRIME – Appeal by Prosecutor against refusal to make costs order – denial of procedural fairness – role of costs order in sentencing

CIVIL PROCEDURE – Proceedings brought by persons under legal incapacity – Settlement of proceedings – Court Approval

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving creditors’ schemes of arrangement – Whether creditors’ schemes of arrangement should be approved.

HIGH RISK OFFENDERS – application for an extended supervision order – high risk violent offender – index offence of wounding with intent to inflict grievous bodily harm – history of offences involving violence – lengthy period in custody – order made – resolution of disputed conditions – offender proceeding reasonably well under ISO in the community – dispute as to disclosure and surveillance conditions – actual and potential outcomes of offence – the elusive concept of midnight – “all stick and no carrot”

CIVIL PROCEDURE — Subpoenas — Review of Registrar’s refusal to set aside — Threshold in civil proceedings is higher than the criminal threshold of “on the cards” that relevant documents might be produced in response — No reasonable basis beyond speculation for supposing that documents produced in response will materially assist — Subpoena set aside COSTS — Security for costs — Application for further security for costs — Consideration of the purpose of an order for security for costs — Further security would not stultify the proceedings — Further security ordered

INSURANCE – CIVIL PROCEDURE – parties – leave sought to bring and continue proceedings against first respondent insurer – s 5 Civil Liability (Third Party Claims Against Insurers) Act – adequacy of proposed pleading – whether pleadings disclose arguable case in tortious or contractual negligence against defendant – whether pleadings make clear, or need to make clear, an arguable case the first respondent’s policy responds – Sergienko v AXL Finance distinguished CIVIL PROCEDURE – joinder – of second to sixth respondents as additional plaintiffs – necessary for the determination of all matters in dispute CIVIL PROCEDURE – pleadings – amendment of pleadings – consequential upon joinder

EQUITY — general principles and maxims — equality is equity— calculation of final distribution of estate EQUITY — trusts and trustees — beneficiaries — right to call for distribution of trust property

COSTS — party/party — payable out of a fund — deceased estate — unsuccessful family provision applicant — settlement offer made by estate — whether reasonable to accept offer — executor indemnification

CONSTITUTIONAL LAW — Commonwealth Constitution — implied freedom of political communication — where impugned law prohibits publication of names of children and young persons connected with care proceedings — publication defined broadly by statute — application of structured test for validity — slight burden on political communication made out — whether burden justified — characterisation of impugned law by reference to statutory objects — legitimate protective function made out — high likelihood of irreparable damage absent impugned law — inherently sensitive subject matter — burden consequently found to be justified —— relevance of impugned law being an offence of strict liability — relevance of criminal penalty for contravention — quantitative analysis of persons likely to be affected by impugned law — severance not possible — offence-creating provision held to be constitutionally valid

CIVIL PROCEDURE – Pleadings – matter to proceed by way of Statement of Claim not by Summons – application to transfer proceedings to Equity Division – application refused

CIVIL LAW – high risk violent offender – extended supervision order – application for revocation – where index offence extremely grave – shooting with intent to murder – recent incidents of violence while applicant in custody – where breaches of order based on associations with gangs of outlaws – where applicant showing positive signs of rehabilitation – whether changes in circumstances justify revocation – application for revocation refused CIVIL LAW – application to vary extended supervision order – whether order administered unfairly or oppressively – where freedom to associate with elderly relatives unfairly restricted – denial of permission to urinate – walking the dog in places not pre-approved by DSO – where desire to fish unreasonably inhibited – where order otherwise enforced reasonably – conditions of order varied CIVIL LAW – costs – where primary application refused and alternative application granted in part – conduct of proceedings – discretion to award costs – 25% of reasonable costs to be allowed subject to further submissions

WORKERS COMPENSATION – medical assessment – appeal from approved medical specialist to Appeal Panel – whether second appeal to Appeal Panel available on ground of deterioration – whether application for further appeal should have been treated as application for reconsideration, or whether notice to applicant should have been given, before application dismissed APPEALS – consideration of nature of appeals from approved medical specialist to Appeal Panel – consideration of nature of appeals from Associate Judge to Court of Appeal

CIVIL PROCEDURE – Cross-vesting – Transfer to the Supreme Court of Queensland

LEASES AND TENANCIES — Construction and interpretation — Lessor partners held premises as tenants in common in equal shares — Whether transfer of one partner’s half interest to the other upon dissolution of partnership triggered lessee’s first right to purchase premises — Measure of damages for breach — Proper construction of “selling”

CIVIL PROCEDURE – Notices to produce – Before hearing – Objection to production of material – Public interest immunity

SUCCESSION – The Plaintiff makes a claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death – Small provision made for the Plaintiff in the Will of the deceased - Defendant, a trustee company, is the executor to whom Probate granted – Four residuary beneficiaries named in the Will of the deceased are his children by his earlier marriage - Relevance of financial conduct of the parties during the relationship – Lack of financial inter-relationship between them - Whether any arrangement or understanding existed between deceased and the Plaintiff that each would leave his, or her, estate, respectively, to his children, or her child, respectively – If so, relevance of such arrangement or understanding - Nature of provision to be made – Whether absolute interest, life estate, Crisp order, or other form of provision should be made – Competing claim of each of the adult children of the deceased and the Plaintiff – Order for provision made

Application under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into the applicant’s conviction – where applicant is a vexatious litigant – whether an application under s 78 is a “proceeding” under s 4 of the Vexatious Proceedings Act 2008 (NSW) – whether a “criminal proceeding” – whether leave required – held, application under s 78 not a “proceeding” – leave not required – no doubt or question raised as to the applicant’s guilt – applicant refused

CORPORATIONS – receivers – validity of appointment – s 418A, Corporations Act – principles at [3]-[6] – Circulating Asset – meaning of “currency of any country” at [96]-[97] – unable to certify able to pay debts when due – implied obligation to certify solvency at [129]-[134] – failure to provide books and records – failure to assist investigating expert – unable to certify solvency – appointment of receivers valid.

SENTENCING – murder – principal in the first degree – principal in the second degree – machete used to kill victim – home invasion to steal drugs – related offences – three offenders – extended joint criminal enterprise – knowledge of machete and planning of home invasion – objective severity above mid-range – parity – totality – partial accumulation – Bugmy principles applied – discretion to set commencement date – discount for facilitating a shorter trial should ordinarily be lower than discount for plea obviating need for trial – quantification of discount - mitigation for facilitating administration of justice allowed but not quantified

APPEAL – application for leave to appeal – where final orders entered by consent – applicant claiming not to have understood effect of orders for medical reasons – whether orders liable to be set aside on that basis

CRIME – Appeals – Appeal against sentence – Where applicant sentenced in New South Wales for supply prohibited drug and recklessly deal with proceeds of crime – Where applicant was serving lengthy sentence in Western Australia for supply and attempted supply of prohibited drug – Where Sentencing Act 1995 (WA) mandated an unusually high ratio of the non-parole period to the total sentence – Where the sentencing judge partially accumulated the non-parole period resulting in an increase by 6 months – Where the applicant had made good rehabilitative progress in prison – Whether the sentencing judge erred in partially accumulating the non-parole period in circumstances in which the statutory ratio had already been exceeded and the applicant had made good rehabilitative progress – Principle of totality – Application of Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

EVIDENCE – hearsay – first-hand hearsay exception where maker available – whether asserted fact ‘fresh in the memory’ – passage of three months between occurrence of fact asserted and representation – where maker has history of substance abuse – facts asserted about events of notoriety in community – evidence applies to identity of a person and place

CIVIL PROCEDURE — Parties — Representation

MENTAL HEALTH — Management of estate — Administration by NSW Trustee — Application by daughter of protected person that NSW Trustee be removed as financial manager and that she be appointed as financial manager instead — Application dismissed

EQUITY — Trusts and trustees — Powers, duties, rights and liabilities — Indemnity, lien and reimbursement — Resulting trustee to sell trust property instead of receiver to enforce trustee’s lien

CIVIL PROCEDURE — Summary dismissal — No reasonable cause of action — Abuse of Process — Expiry of limitation period — Pleadings — Striking out — No reasonable cause of action — Tendency to cause prejudice, embarrassment or delay — Abuse of Process

Oppression — Members’ rights and remedies — Whether conduct is oppressive to, unfairly prejudicial to, or unfairly discriminatory — Where first defendant increased salary without consent — Where first defendant took funds from company and then returned them — Where defendants resolved to issue shares in company in manner that would cause substantial dilution in plaintiffs’ shareholding — Where other heads of oppression not made out. Oppression — Members’ rights and remedies — Exercise of discretion as to remedy — Whether compulsory buyout orders as to Plaintiffs’ or Defendants’ shares appropriate in the circumstances — Whether to order company be wound up in oppression — Where relationship between the parties has broken down — Where both parties have contributed to present dispute.

CHILD WELFARE – care proceedings – interlocutory application – whether care order should be stayed – whether orders should be made allowing child to live with mother or allowing daily contact – whether parens patriae jurisdiction should be invoked.

APPEALS – application for leave to appeal – proposed appeal has no significant prospect of success – no important issue of principle – no question of general public importance